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1
Baybakova, Larisa. In search of a modern concept of US foreign policy of the late XIX-early XX century. ru: INFRA-M Academic Publishing LLC., 2020. http://dx.doi.org/10.12737/1071748.
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The monograph of the Russian American historian is devoted to a number of conceptual problems of US foreign policy in the period of early globalization (late XIX-early XX century). The significance of the socio-economic factor is reinterpreted from the standpoint of modern theory and methodology; the role of the ideology used by the political elite to justify American expansion is traced. New interpretations of the causes and consequences of the Spanish-American war of 1898 are given: for the first time, the place of the "yellow" press in inciting anti-Spanish sentiment among ordinary Americans is shown in detail as one of the first manifestations of successful manipulation of public opinion; the level of combat capability of the American army, which achieved victory over a weaker enemy, but was unprepared to conduct an armed struggle for achieving geopolitical interests with leading European powers, is critically assessed. The archival material, first introduced into scientific circulation, traces the mediation activities of President Roosevelt As the first successful experience in the peaceful settlement of regional conflicts, and also shows the search by top officials for a new world order under the auspices of the United States, with an emphasis on the use of the principles of international arbitration. It is addressed to researchers, teachers, and students interested in the history of the United States.
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Jeffery, Commission y Moloo Rahim. 2 The First Procedural Order. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198729037.003.0002.
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This chapter considers the supplementary procedural rules that are typically decided at the outset of an investment arbitration and the process through which those rules come to be. It begins by discussing the procedural issues that parties and arbitral tribunals often see fit to address at the outset, including the procedural timetable, bifurcation, seat (if applicable), location, fees and costs, language, pleadings, discovery, witnesses, expert witnesses, amicus curiae, and confidentiality/transparency. The chapter also examines the process for deciding these procedural issues, noting that the procedure is most often a hybrid of communicating to the tribunal issues agreed by the parties and debating before the tribunal controverted procedural issues, which the tribunal then resolves. The First Procedural Order is the result of the First Procedural Conference.
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Jeffery, Commission y Moloo Rahim. Procedural Issues in International Investment Arbitration. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198729037.001.0001.
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Procedural issues are an area of increasing complexity and concern in modern investment arbitration, and one in which very little guidance currently exists. There are a number of important points of departure from the procedural rules commonly adopted in the context of international-commercial arbitration. This book is the first of its kind to address this gap, examining the most prevalent and controversial procedural issues that arise in investment arbitration proceedings conducted under the International Centre for Settlement of Investment Disputes (ICSID), UNCITRAL, and other arbitral rules. The book takes the reader through an investment arbitration in chronological order, identifying each key procedural issue in turn and providing details of the relevant precedents. It charts the process of an arbitration from applicable law and first sessions right through to cost submissions and statements of costs and post-award remedies. Fully cross-referenced and tabled, the book is an invaluable and practical guide to issues of increasing importance and relevance in ICSID and other arbitrations today.
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Markus S, Rieder y Kreindler Richard. 2 The Arbitration Agreement. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780199676811.003.0002.
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This chapter explores the arbitration agreement from a variety of perspectives, first looking at the required content and the validity of an arbitration agreement. As an agreement, it is subject to grounds before invalidity and, once found valid, subject to interpretation. In order to qualify as an arbitration agreement, it must relate to a dispute within a defined legal relationship and must provide for arbitration for binding conflict resolution. The chapter then outlines the scope, effects, and issues of the termination of an arbitration agreement. Under German practice, the personal scope of the arbitration agreement extends to its parties, and in certain limited circumstances, it may also extend to third parties. The chapter concludes with typical additional contents of arbitration agreements, in particular with regard to the place of arbitration, the language of the proceedings, the selection of the applicable substantive law, and the selection ad hoc or institutional arbitration.
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Lord, Hacking y Berry Sophia. Part IV Arbitral Procedure and Procedural Misdemeanour, 13 Ethics in Arbitration: Party and Arbitral Misconduct. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198783206.003.0014.
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The problem of party misconduct in international arbitration is on the rise, as evidenced by the level of attention this issue has attracted from practitioners and institutions, as well as scholars, at recent conferences, and in articles, books, and blog posts. This chapter first explores the forms of party misconduct and the steps arbitral institutions and practitioners need to take in order to curb misconduct. Party misconduct can include: attempts to stop hearings progressing; abuse of the document disclosure process; discourteous behaviour; acts to surprise the opposition; applications for anti-arbitration injunctions and other approaches to national courts; issues of ex parte communications; and witness tampering. The remainder of the chapter considers the means by which arbitrator misconduct should be tackled.
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Tubau, Xavier. Humanism, the Bible, and Erasmus’s Moral World Order. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780199670055.003.0005.
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This chapter sets Erasmus’s ideas on morality and the responsibility of rulers with regard to war in their historical context, showing their coherence and consistency with the rest of his philosophy. First, there is an analysis of Erasmus’s criticisms of the moral and legal justifications of war at the time, which were based on the just war theory elaborated by canon lawyers. This is followed by an examination of his ideas about the moral order in which the ruler should be educated and political power be exercised, with the role of arbitration as the way to resolve conflicts between rulers. As these two closely related questions are developed, the chapter shows that the moral formation of rulers, grounded in Christ’s message and the virtue politics of fifteenth-century Italian humanism, is the keystone of the moral world order that Erasmus proposes for his contemporaries.
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John L, Gardiner, Kuck Lea Haber y Bédard Julie. 9 Discovery. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198753483.003.0010.
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This chapter considers the laws and practices pertaining to discovery. Discovery refers both to the process whereby the parties exchange information among themselves and also seek information from third parties in order to assess the merits of their respective cases, prepare for an evidentiary hearing on the merits of their dispute, and make necessary submissions to the arbitration tribunal. When the arbitration is venued in New York, the first issue for consideration is what the arbitration agreement itself provides, if anything, about the scope of permissible discovery. This is because both federal and New York law place party autonomy at the top of the pyramid of considerations when looking at the applicable procedure for an arbitration, including discovery issues. Arbitration rules and statutory provisions also are relevant.
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Julien, Fouret. Part VI The Post-Award Phase, 30 A Practical Guide: Research Tools in International Investment Law. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198758082.003.0030.
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This chapter aims to help the new investment arbitration practitioner identify and find the main legal sources for dealing with international investment law issues. Three different topics need to be addressed in order to cover, as extensively as possible, the legal issues generally raised during an arbitration based on an international investment agreement. First, even though the stare decisis rule does not exist in international arbitration, including investment arbitration, previous rulings are often used and analyzed by arbitrators. Second, when dealing with investment arbitration, it is likely that the claim will be treaty based. Finally, and most importantly, in international investment disputes, arbitral tribunals rely on all the sources of public international law identified in Article 38(1) of the Statute of the International Court of Justice, which provides for the Court to apply.
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Ian, Gaunt. Part III Where to Arbitrate? Distinctive Features of Maritime Arbitral Seats, 9 Maritime Arbitration in London: Publication of Awards, Appeals, and the Development of English Commercial Law. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198757948.003.0009.
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This chapter examines what makes London so popular as a maritime arbitration centre. Chief among the reasons is the availability of a pool of arbitrators with a breadth of professional knowledge and experience, including not just lawyers but commercial men and women. It also discusses the perceived effect of the use of arbitration on the development of English law. On the one hand, the number of appeals going to the courts is such as to ensure that new precedents are produced in order to lend vibrancy to the law. On the other hand, some first instance decisions have shown a tendency on the part of judges to decide cases without sufficient sensitivity to commercial practice, leading to precedents that are hard for arbitrators to apply. The chapter also considers the major challenges faced by the London Maritime Arbitrators Association in maintaining London as the foremost centre for the resolution of shipping disputes.
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Hilary, Heilbron. Part IV Arbitral Procedure and Procedural Misdemeanour, 11 Is International Arbitration Becoming Too Confrontational and Counter-Intuitive? And Some Guidelines as to How Not to Irritate a Tribunal! Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198783206.003.0012.
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International arbitration is becoming increasingly fractious, ill-tempered, and combative, as each side deploys tactics to argue its case. All too frequently, lawyers lose sight of the fact that it is the tribunal whom they need to win over to their cause. Aggravating a tribunal, whether by aggressive and combative advocacy or by an ill-presented case, is counter-productive. This chapter addresses the causes of this growing tendency and how to deal with it from the perspective of both oral and written advocacy and presentation. It suggests that the real problem is a developing culture of using the arena of arbitration as a stage to play out the parties’ anger against each other, using their lawyers as the means to do so. As a response, tribunals, in the first procedural order for the hearing, or appended to it, need to lay down some basic rules.
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Jeffery, Commission y Moloo Rahim. 8 Hearing Procedures. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198729037.003.0008.
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This chapter examines the components of a typical investment arbitration hearing as well as various procedural issues that arise in the context of the hearing. Hearings often present the best opportunity to test the evidence and arguments presented by the parties over the course of an arbitration. It is therefore important to give both parties an equal and adequate opportunity to present their case at the hearing. Yet, there is a desire to conduct the hearing in an efficient manner. The goal in adopting hearing procedures is to strike a balance between these considerations. The chapter first considers how parties and the tribunal will want to plan for the hearing at the outset. It then discusses the pre-hearing procedures and the hearing itself, taking into account the order of proceedings, cases where witnesses/experts are unavailable to testify in person, transcription of proceedings, and transparency and confidentiality of the hearing.
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Mark, McNeill y Ryan Margaret Clare. Part VI Discovery and Document Production, 17 Meeting the Requirements of Article 3(3) of the IBA Rules: Recommendations for Successful Requests for Document Production. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198783206.003.0018.
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The International Bar Association (IBA) Rules on the Taking of Evidence, first issued in 1999, were designed as a tool for parties and for arbitrators to promote ‘an efficient, economical, and fair process for the taking of evidence in international arbitration’. Article 3 of these Rules, concerning the taking and presentation of documentary evidence, is arguably the central provision given the important role played by documentary evidence in international arbitral proceedings compared to other means of evidence. However, disputing parties often debate the practical application and interpretation of Article 3-particularly relating to Article 3.3, which sets forth the positive requirements that a party must meet when submitting a request to produce documents that are in the control of an opposing party (a ‘Request to Produce’). This chapter explores the most debated criteria of Article 3.3 in order to identify the characteristics of a well-drafted Request to Produce. Meeting the Article 3.3 requirements will assist a party in advancing its case by obtaining the production of vital and specific documents in an adversary’s possession. It will also promote an efficient and cost-effective process of taking evidence in international arbitration.
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Hinshaw, Art, Andrea Kupfer Schneider y Sarah Rudolph Cole, eds. Discussions in Dispute Resolution. Oxford University Press, 2021. http://dx.doi.org/10.1093/oso/9780197513248.001.0001.
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As a serious field of academic study for approximately forty years, Discussions in Dispute Resolution: The Foundational Articles constitutes both a celebration of the dispute resolution field’s most influential commentaries in its first few decades and a reflection of what makes these pieces so important. In this book, the editors have identified sixteen foundational writings published before the year 2000. They consist of four pieces from each of the field’s primary subfields—negotiation, mediation, and arbitration—as well as four pieces that are more public policy focused and do not neatly fit in one of those three categories. In each section, the works appear in chronological order, and each has four commenters who are answering the question: Why is this work a foundational piece in the dispute resolution field? The purpose in asking this simple question is fourfold: to hail the field’s foundational generation and their work, to bring a fresh look at these articles, to engage the articles’ original authors where possible, and to challenge the articles with the benefit of hindsight. And, where possible, we give authors of the original pieces the opportunity either to reflect on the piece itself or to respond to the other commenters.
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Cai, Congyan. The Rise of China and International Law. Oxford University Press, 2019. http://dx.doi.org/10.1093/oso/9780190073602.001.0001.
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The rise of China represents a far-reaching process of international relations in the twentieth century, which should bring about extensive but uncertain ramifications. How China interacts with international legal order—namely, how China takes advantage of international law to facilitate and justify its rise and whether and how international law is relied upon to engage a rising China—has been inviting growing debates among academics and policy circles. A couple of recently eye-catching events, for instance, China-Philippines South China Sea (SCS) arbitration and the China-U.S. trade war, have intensified unease in international society. This book for the first time provides a systematic and critical elaboration on interplay between a rising China and international law. It focuses on several crucial issues, including: Is international law relevant to the rise of China? How has China adjusted its international legal policies as China’s state identity changes over time, especially as it rises as a new great power? What methodologies does China adopt to comply with international law, in particular, to achieve its new legal strategy of norm entrepreneurship? What is the typology of China’s engagement with international organizations? How does China organize its domestic institutions to engage international law to enhance its rise? How does China use international law at the national level (Chinese courts) and the international level (lawfare in international dispute settlement)? And finally, how should “Chinese exceptionalism” be understood? This book adds important literature on emerging comparative international law.
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Sandru, Daniel-Mihail. European Union Law and Arbitration. Slices and slides. Text, cases and materials. Editura Universitara, 2021. http://dx.doi.org/10.5682/9786062812638.
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This present book, “European Union law and arbitration. Slices and slides. Text, cases and materials”, is what the title highlights: slices and slides. This training course was prepared following he invitation addressed by Mr Professor Flavius Baias to teach the course "European Union law and arbitration" at the master's degree in "International Arbitration" of the Faculty of Law of the University of Bucharest. The teaching material within this volume is rather a series of ideas or of references: it has a methodological, operational nature. But it is also a first form of a general construction dealing about the relationship between European Union law and arbitration. Documents enclosed reflect both theoretical and practical experiences. The reader has to get familiar with advanced concepts and mechanisms of both areas in order to fully understand this material. I hope that this first step will be followed by debates and studies relevant to this field also in Romania.
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Frédéric Gilles, Sourgens, Duggal Kabir y Laird Ian A. Part III Presumptions and Inferences, 7 Iura Novit Curia and Proof of Law. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198753506.003.0007.
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This chapter examines one of the most underestimated areas of proof in investor-state arbitration—the proof of law. The first evidentiary principle governing proof of law is the maxim of iura novit curia, or the tribunal or court knows the law. The principle is fraught with difficulty when applied to investor-state arbitration. The practice of investor-state arbitration on its face disproves the assumption that tribunals know the law in a non-trivial sense. This difficulty does not mean, however, that iura novit curia is wholly inapplicable to investor-state arbitration. Rather, as the chapter shows, the principle must be carefully circumscribed in order to avoid potential annullable error.
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Frédéric Gilles, Sourgens, Duggal Kabir y Laird Ian A. Part IV Proving Your Case, 10 Witnesses and Experts. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198753506.003.0010.
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This chapter gives the first full-length treatment of the law and principles of evidence applicable to witness and expert testimony. One of the most underdeveloped areas in the literature concerns witnesses and experts. Witnesses and experts are crucial parts of any investor-state arbitration. In fact, most if not all investor-state arbitrations rely upon the testimony of witnesses and experts in order to prove central factual and legal issues in dispute between the parties. Hence, the chapter covers direct as well as cross-examination and aims to provide a better understanding to parties in framing witness statements as well as to counsel and tribunals in managing cross-examination at a hearing.
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Nigel, Blackaby, Partasides Constantine, Redfern Alan y Hunter Martin. 11 Recognition and Enforcement of Arbitral Awards. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198714248.003.0011.
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This chapter examines the recognition and enforcement of arbitral awards. It discusses the carrying out, or performance, of awards, so as to place recognition and enforcement in their proper context. In arbitration, if the losing party fails to carry out an award, the winning party needs to take steps to enforce performance of it. Two steps may be taken. The first is to exert some form of pressure, commercial or otherwise, in order to show the losing party that it is in its interests to perform the award voluntarily. The second is to invoke the powers of the state to obtain a charge over the losing party’s assets or in other ways to compel performance of the award. Pressure may also be exerted through adverse publicity. This method is adopted by trade associations and has the effect of discouraging other traders in the market from dealing with the defaulting party.